Posted in Environmental Law

Right to Life for Animals: Changing from Anthropocentric to Eco-centric Jurisprudence

Humans are the most powerful species in the world. At the famous Lusaka Zoo, in Zambia, there is a mirror which is kept in the cage. There is no animal in that cage and outside that cage, following words have been written “The World’s most dangerous animal”. In that mirror one can see himself, and that reflects the fear of men destroying their own future, with their own deeds.

People are destroying their own ‘right to life’ by using their freedom to exploit nature. Judiciary in India, has expanded the horizons of the, much debated and popular, Article 21. Ironically, it has indirectly given the right to life to nature. It is the nature from where we derive our life energy, and now are endangering it. The Judicial Activism is protecting the nature through the route of human’s right to enjoy healthy environment.[1]

Further, this wave of Judicial Activism has led to the incorporation of principle of Inter-generational equity and sustainable development in the right to life. There is increasing need to protect the nature and wildlife from extinction, as without them there would be no sustainable development. They directly or indirectly serve for the welfare of the human beings. Article 21 of the Constitution of India which guarantees the people of the country right to life and liberty, also cast a duty upon them to not to deprive other from this right. People by destructing wildlife, are depriving the other people from their life and liberty. Therefore, Article 21 is indirectly providing the right to life to animals.

 In N.R. Nair v. Union of India, [(2000) 2 KLT 625],  the debate was started by the Kerela High Court that, animals are also beings, having right to dignified existences and humane treatment without any cruelty. They only satisfy their need and not their greed, unlike humans. Court in clear word said:

“In this context, we may ask why not our educational institutions offer a course on “Animal Rights Law” with an emphasis on fundamental rights as has been done by the Harvard Law School recently. “If humans are entitled to fundamental rights, why not animals?” In our considered opinion, legal rights shall not be the exclusive preserve of the humans which has to be extended beyond people thereby dismantling the thick legal wall with humans all on one side and all non-human animals on the other side. While the law currently protects wild life and endangered species from extinction, animals are denied rights, an anachronism which must necessarily change.”

Jallikattu  Case – Animal Welfare Board of India v. A. Nagaraja

Recently, in a decision of Animal Welfare Board of India v. A. Nagaraja, [(2014) 7 SCC 547] Apex court has discussed the Article 21 in the context of the animals. It was a case concerning the violation of Prevention of Cruelty to Animals Act, 1960 (PCA, Act), by the customary practice of ‘Jallikattu’.

Jallikattu is a practice where bulls are tamed or annoyed in inhumanely manner till they get enraged, and start running haywire. It is a Tamil word, which comes from “callikattu”, which is composed of two words “calli” means coins and “kattu” means a package. Therefore, it’s a sport in which, silver or gold coins tied on the bulls’ horns, and players fetch it, as an act of bravery.

Apex Court, said that the rights guaranteed to the animals under PCA Act are only statutory rights, and the same have to be elevated to the status of fundamental rights. It called the rights under, Sections 3 and 11 of the PCA Act, and Articles 51-A (g) and (h) of the Constitution, as the Magna Carta of animal rights in India.

Article 21 has indirectly covered under its umbrella every species, and blessed them with right to life and security, which includes depriving its life, out of human necessity. Article 21 protects life, and the word “life” has been expanded by the highest constitutional Court, so as to include all forms of life in the environment, which contains animal life also, which are necessary for human life. Honorable Court held that “life” in context of animals does not mean, mere survival or existence or instrumental value for human beings, but also life with some intrinsic worth, honour and dignity. It in addition enlisted these five internationally recognized freedoms for animals, such as:

(i) freedom from hunger, thirst and malnutrition;

(ii) freedom from fear and distress;

(iii) freedom from physical and thermal discomfort;

(iv) freedom from pain, injury and disease; and

(v) freedom to express normal patterns of behaviour.

They are also called “Brambell’s Five Freedoms”. They have been elevated and equated with rights guaranteed to the citizens of this country under Part III of the Constitution of India, thought they find their place in Sections 3 and 11 of the PCA Act.

Conclusion

The A. Nagaraja, judgment, has limited the scope of the application of the Judgment, to the point when such animals’ life is necessary for human life, and has failed to give precedence to the need of nature i.e. going Eco-centric from Anthropocentric.

Supreme Court, in Centre for Environmental Law, World Wide Fund-India v. Union of India,[(2013) 8 SCC 234] said that sustainable development has Anthropocentric bias, and is not concerned with the rights of other species which live on this earth. Honorable Court explained that laws are made by men, and as a result they are anthropocentric, and rights of wild animals become of secondary importance.[2]

Anthropocentric approach always gives preference to the interest of the humans. On the other hand Eco-centric approach is concerned with needs of nature. In this approach unlike anthropocentric approach, non-humans also have intrinsic value, and human interest does not take automatic precedence. Therefore, following, the Eco-centric approach, to an extent the Apex court in A. Nagaraja held that Article 21 protects not only human rights but also casts an obligation on human beings to protect and preserve a specie from becoming extinct, and  to conserve and protect  environment, as these are also an inseparable part of right to life.

Now, treating animals cruelly is against the public morale and public order.[3] Bombay High Court in Public Interest Litigation of Animals and Birds Charitable Trusts and Others v. Municipal Corporation of Greater Mumbai and others[4], has supported the Eco-centric view developed by the Supreme Court in above said judgments.

The Apex court has gone to the extent to use Article 21 to give life to animals, equivalent to that of humans. It has brought the rights of animals to be protected like a fundamental right. Therefore, it has reflected that the animals also have fundamental right under the Constitution of India. The Supreme Court still held the interest of the human beings to supersede the interest of animals. Hence, it has failed in its attempt to neutralize a speciesism which means favoring one’s own species.

Justice would be done, only if we transform our laws from the principle of anthropocentric to eco-centric, completely. Famous principles in International Environmental jurisprudence like sustainable development, polluter-pays principle, inter-generational equity have their roots in anthropocentric principles, so these must be changed and, Eco-centrism, should be promoted, which is nature-centred as well as life-centred, and humans form part of nature and flora-fauna have intrinsic value.[5]

[1] Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496

[2] T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277

[3] Jumbo Circus v. Union of India, June 6, 2000,O.P Nos. 155, 1066, 2187, 1141, 5086, 6378, 6148, 6032, 2029, 5616, 486, 2636, 6229, 8173, 9483, 3845, 430, 6352, 2460 & 11729 of 1999

[4] Animals and Birds Charitable Trusts and Others v. Municipal Corporation of Greater Mumbai and others, Public Interest Litigation No.36 Of 2011, decided on 08.06.2015

[5] T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

Posted in Critical Analysis, Environmental Law

Stubble Burning – A threat to the environment?

This article has been written by Plash Mittal. Plash is a student of BCom LLB at University Institute of Legal Studies, Panjab University, Chandigarh.

Stubble burning is the deliberate setting fire of the straw stubble that remains after wheat and other grains have been harvested. The carbon (C) component in stubbles is lost by burning and that the process of burning stubbles even occasionally, seriously affects the organic carbon levels of the soil. Around 80 per cent of the C in standing stubble will return to the atmosphere as CO2. Losses of carbon as CO2 to the atmosphere through burning are often only slightly greater than through natural decomposition, but they are of course immediate.

Advantages of burning

  • Cheap
  • Quick and easy
  • Can assist weed, insect and disease control
  • Reduced nitrogen tie-up

Disadvantages of burning

  • Loss of nutrients
  • Loss of carbon
  • Impact on soil microbes and fauna
  • Reduction in soil structure (soil aggregate stability)
  • Increase in erosion (wind and water)
  • Can increase acidity over time

 

After a bumper paddy crop, the fields are on fire in Punjab and Haryana, polluting the air with hazardous particles. Even the atmosphere of Delhi is witnessing a thick blanket of smog. The resultant haze and low-hanging clouds of smoke, exacerbated by low temperature and slow wind speed are posing serious risks to people with breathing troubles, allergies, asthma and other respiratory disorders 

A major pollutant

Burning straw leads to increase in particulate matter (PM) in the air. The burning causes release of acids like sulfates, nitrates, metals in the air and could cause severe health problems. According to the experts, burning of straw burns out 1 lakh tonnes of nitrogen, 0.5 lakh tonnes of phosphorus and 2.5 lakh tonnes of potash in the soil over the 29-30 lakh hectares in which paddy is grown annually.

 

Ban remains on paper

In Jalandhar district, where 1.6 lakh hectares were under paddy this season, 80% of the farmers burn their crop residue to free their land for the next crop. Haryana Space Application Centre (HARSAC) in a survey found that farmers in Haryana burnt 80% of the stubble for paddy and wheat. After the government banned stubble burning in 2014, farmers reduced it up to 14%.

 

Political will missing

Lack of action is responsible for the continued stubble burning. The farmers are taking advantage of leniency and setting crop residue on fire without considering the threat to human lives or soil health.

Solution

The best use of stubble is as animal feed by conversion of stubble into goat fodder. Converting stubble into milk and meat will add more value than using it as fuel. Humans cannot digest straw at all, but cattle, sheep, goats have four-stage stomachs that digest up to half of it. Goats have the toughest stomachs and best digestion rates. Treatment with urea, alkalis or molasses can improve the digestibility and calorific value of straw.

Zero-till farming is another alternative which sows wheat seeds without removing the stubble. Tractor-mounted happy seeders, rotavators, and straw-reapers simultaneously cuts rice stubble and sows wheat seeds, depositing the cut stubble on top as mulch.

The farmers should be encouraged to adopt conservation farming systems. Alternative options to manage stubble residues, particularly in high rainfall areas, are continuing to evolve.

An all-round aggressive approach is needed on behalf of the government, scientists and farmers in the form of adoption of ‘straw management technologies’.

 

The Existing Law

There is no specific law in Punjab to ban straw stubble burning, but every Deputy Commissioner (DC) in Punjab has the power to ban this under section 144 of the CrPC. The practice, however, continues right under their nose. The DC also has the power under 188 of the IPC to punish violators but that rarely happens. Under the law, a violator may be punished for up to six months jail and imposed a fine of Rs 1,000.

Meanwhile in Haryana, the environment department had banned the burning of agriculture waste in the open fields under the Air (Prevention and Control of Pollution) Act 1981. Till date, prosecution action has been filed against 32 farmers in the special environment courts in Kurukshetra and Faridabad by the Haryana Pollution Control Board for burning paddy in the open fields.

Need for New Law

Like Punjab Preservation of Subsoil Act of 2009, which was enacted to save depleting groundwater and under which no farmer can sow paddy before June 10 or June 15, a similar law is needed to ban paddy straw burning.

REFERENCES

  1. http://www.hindustantimes.com/punjab/the-stubble-trouble-farmers-play-with-fire-shun-ban/story-At8wllN4WFzpnrJC2L3J2J.html

  1. http://agriculture.vic.gov.au/agriculture/grains-and-other-crops/crop-production/stubble-burning

  1. http://blogs.timesofindia.indiatimes.com/Swaminomics/how-goats-can-clean-delhis-dirty-air/

  1. http://www.tribuneindia.com/news/punjab/punjab-haryana-farmers-ignore-ban-on-stubble-burning/311814.html

  1. http://timesofindia.indiatimes.com/city/delhi/Ban-reduces-stubble-burning-caused-air-pollution/articleshow/52895763.cms

  1. http://indianexpress.com/article/india/india-news-india/stubble-paddy-burning-laws-pollution-punjab-haryana-machines-technology-agriculture-3074422/

  1. http://indianexpress.com/article/explained/punjab-needs-law-awareness-to-contain-air-pollution-caused-by-paddy-straw-burning/
Posted in Critical Analysis, Environmental Law

Political Ecological Philosophies and Sustainable Development: An Analysis

This article has been written by Chirag Jindal. Chirag is a first-year law student at the National University of Advanced Legal Studies, Kochi.

In the famous Asiatic Lion Case, the Supreme Court of India laid down the following:

“Sustainable Development, it has been argued by various eminent environmentalists, clearly postulates an anthropocentric bias, least concerned with the rights of other species which live on this earth. Anthropocentrism is always human interest focused thinking that non-human has only instrumental value of humans, in other words, humans take precedence and human responsibilities to non-human are based on benefits to humans. Eco-centrism is nature-centered, where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest.”[1]

In this Article, it will be tried to analyze the concept of sustainable development, in general, and its relation with the different political ecological philosophies that are being followed.

The most frequently quoted definition of sustainable development is as follows:

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”[2]

This definition implies that development goals should be achieved in such a way so as to degrade environment least as far as possible so that the present generation as well as the future generation is able to meet the needs in all frames of time. The definition focus on two key concepts:

  • the concept of needs, in particular the essential needs of the world’s poor, to which overriding priority should be given;[3]
  • the idea of limitations, imposed by the state of technology and social organization on the environment’s ability to meet the present and future needs;[4]

As it has been rightly pointed out by Lionel Robbins in his ‘scarcity definition’[5] of economics that human needs are unlimited but the resources present on the earth are limited. This idea has become more constrained and the gap between unlimited needs and limited resources has been increased mainly because of the two reasons:

  • Increasing needs because of population rise in the world.
  • Limitations on the resources present due to shortage of resources (caused by their extensive uses in past) and imposition by the technology on environment’s ability.

 The principle of sustainable development laid down by the environmentalists to overcome the above problem is an appealing way to reduce the environment degradation. Yet the issue cannot be settled very easily. Though we have a solution, the difficulty arises in how to approach to solve the problem. This is because of the different philosophies of political ecologists in themselves to cope up with the issue of environmental issues and phenomena. Let’s have a look at what type of philosophies do political ecologists have.

There are mainly three types of philosophies that ecologists follow but these three are complemented by many other philosophies too. The first one is the eco-centrism. The ecocentric argument is grounded in the belief that, compared to the undoubted importance of the human part, the whole ecosphere is even more significant and consequential: more inclusive, more complex, more integrated, more creative, more beautiful, more mysterious, and older than time.[6] The second is anthropocentric belief. Anthropocentrism is the belief that considers human beings to be the most significant entity of the universe and interprets or regards the world in terms of human values and experiences.[7] The third philosophy is the technocentric approach to environment. Technocentrism is technological centered belief to protect the environment and the ecologists claim that humans have ability to control and protect the environment.

The question which arises next is whether sustainable development and different political ecological philosophies go hand in hand with each other.

Technocentric belief can be said as a far fletched belief. That humans can control and protect the environment is itself a fallacy. The world has seen many examples where the nature has reached outside the control of humans particularly during natural calamities which are increasing day by day due to human interference with nature.

As we analyze the anthropocentric i.e. human centered belief, we come across the fact that due to the philosophy of anthropocentrism itself, the world is facing the consequences which could have been possibly avoided in the past. Due to the greediness of humans, the destruction and degradation of environment started and continues till today. And to say that anthropocentrism and sustainable development may be a possibility is beyond the thinking of a rational human being who beliefs in environment protection. This can be clearly inferred from the words of Stan Rowe that goes as follows:

 “The “environment” that anthropocentrism misperceives as materials designed to be used exclusively by humans, to serve the needs of humanity, is in the profoundest sense humanity’s source and support: its ingenious, inventive life-giving matrix. Ecocentrism goes beyond biocentrism with its fixation on organisms, for in the ecocentric view people are inseparable from the inorganic/organic nature that encapsulates them. They are particles and waves, body and spirit, in the context of Earth’s ambient energy.”[8]

The Eco-centric belief can be said to be the most concordant belief with the sustainable development. But the belief ties to limit the development in itself. According to the definition of sustainable development, development should also meet the needs of the present generation. But if we go with eco-centrism, it is not possible to meet the needs of present generation which consist of almost 8 billion people in the world though it can manage to preserve the world for future generations.

With the above analysis a new question arises i.e. whether the concept of sustainable development itself is mostly a theoretical concept with a very limited scope of practical applications. The answer again can be two-fold. On one view, it can be said that sustainable development is a hollow concept and humans do not have any control over the happenings in nature. The environment has now reached beyond the ambit of human beings and whatever happens now is in nature’s hand. On the contrary, it can be said that sustainable development is at least a step ahead or a tool to protect our environment in whatever way we can. Though the environment is beyond reach of humans, a least contribution even by least number of people can change the present state of environment.

Whatever the answer is or whatever is the view that can be accepted, the debate is still going on forever. The concept of sustainable development has helped mankind a lot at least in the sense of creating awareness among the people. So, it can be said that the change will happen. But we are not sure about the kind of change – either it will be better or it may even be worse. And in order for a change to be a better one, the first thing which is required is the change in attitude of society. Instead of having so much debates and discussions on policies, philosophies, problems etc, let’s not start doing something, however small it may be. It will be better for the world if each and everyone just not focus on planning, but start doing for the betterment of environment.

[1] WWF-I vs. Union of India and Ors (2013) 8 SCC 234

[2] Brundtland Report, 1987 by Brundtland Commission formally known as World Commission on Environment and Development.

[3] supra

[4] supra

[5] Lionel Robbins defined economics as “the science which studies human behavior as a relationship between ends and scarce means which have alternative uses.”

 Robbins, Lionel (2014) [1932], An Essay on the Nature and Significance of Economic Science (2nd ed.). London: Macmillan. p. 16

[6] Rowe, Stan J. (1994).”Ecocentrism: the Chord that Harmonizes Humans and Earth” The Trumpeter 11(2): 106-107.

[7] Anthropocentrism – Merriam-Webster Dictionary

[8] Rowe, Stan J. (1994).”Ecocentrism: the Chord that Harmonizes Humans and Earth.” The Trumpeter 11(2): 106-107.

Posted in Environmental Law

Legal Aspects of Carbon Emission Trading in India

Emission of Green House Gases (GHG) by the industries affects the natural environment and is the major cause of global warming and climate change.Carbon dioxide being the major constituent of the GHG, carbon emission trading or carbon trading is an approach to control pollution by providing financial incentives for reduction in the emission of pollutants. Under this system, the Government body allocates permits to the polluters (say industries) to discharge specific pollute in specific quantity for a specific period. If the emission is increased beyond the limit specified in the permit the offender must have to buy permits from others who are willing to sell. They can purchase it from those having excess permits gained out of reduced emission or from the secondary markets. This transfer of carbon credits is also known as Certified Emission Reductions (CERs). One carbon credit is equivalent to the reduction of one tonne of CO2 emission. The main objective of this trading is to achieve emission reduction at the lowest cost so that the seller reducing pollution is gained by selling permit and the pollutant has to pay for polluting.

This permit trading has become instrumental since the adoption of Kyoto Protocol in 1997 which aimed at limiting carbon emissions in developed countries. India though being a developing country having no obligation to submit reduction commitments ratified Kyoto Protocol in 2002 for the greater interest of the mankind. In 2009 India submitted a voluntary target of 20-25% reduction of the emissions intensity of its GDP by 2020 considering2005 as the base year. India has also signed the historic Paris Agreement in April 2016 along with other 180 United Nations Framework Convention on Climate Change (UNFCCC) members where it is agreed to restrict the global average temperature rise to 1.50C by 2030 by reducing the GHG emission. The country submitted its National Climate Action Plan to UNFCCC on 1st October 2015 to reduce emission and to promote clean energy. All these indicate India’s seriousness to address the problem.

Clean Development Mechanism (CDM) and the Present Indian Scenario:

The Article 12 of the Kyoto Protocol stated CDM as the mechanism which allows a country with emission reduction commitment to implement related projects in the developing countries. Thus CDM leads to the cooperation between the developed and the developing. Indian Government took this chance and is a significant gainer since the implementation of CDM in 2003. In the end of 2014 more than 20% of the (1541 out of 7581) CDM Executive Board approved projects were from India.

Legal Aspects:

Tax Related:

  1. VAT (Value Added Tax):

The question evolved in 2009 about the legal position of CER with respect to submission of VAT. The then Joint Commissioner (L&J), Department of trade and Taxes filed an application to the Court of Commissioner to know the status of carbon credits. He sought the clarification whether sell of CERs is taxable under Delhi Value Added Tax (DVAT) Act, 2004 and if so, what should be the rate of tax?

The commission resolved that because of the intrinsic nature of the carbon credits it has gained the status of a commodity and it is traded in the Multi Commodity Exchange of India (MCX). Moreover, CER is certified by the Clean Development Mechanism (CDM) established by Article 12 of the Kyoto Protocol. The essence of this certificate is to have a market value that has the transferability. So CERs is covered under Entry No. 3 of the IIIrd schedule of the DVAT Act, 2004 and the rate of tax is 4%.

  1. Income Tax:

Several cases like My Home Power Ltd. vs. DCIT [151 TTJ 616, 2014(6) TMI/82], Ambika Cotton Mills Ltd. vs. DCIT(27 ITR 44), Velayudhaswamy Spinning Mills (P) Ltd. vs. DCIT ([(2013) 27 ITR (Trib.) 106], SubhashKabini Power Corpn Ltd. vs. CIT, Bangalore (ITA No. 258, date of pronouncement 28/11/2014) considered sale of carbon credit as capital receipt and not the revenue receipt and is not taxable.

Contractual Issue Related: Future Trading:

Transaction of carbon credit in India is performed on the basis of future contract. This type of contract is only applicable to goods in the form of movable property. Forward contracts in India is regulated by the Indian Contracts Act, 1872 and the Forward contracts (Regulation) Act, (FCRA) 1952. In order to overcome the situation the Union Cabinet on January 25, 2008 passed the ordinance for amending Forward Contracts (Regulation) Act, 1952 but as the bill could not be taken up by the Parliament, the ordinance lapsed and as of now the Forward Contracts (Regulation) Amendment Bill, 2010 is still pending in the parliament.

However, a notification dated 4th January 2008 from the Union Government stated that the provisions of section 15 of the Forward Contracts (Regulation) Act, 1952 (which deals with the forward contracts in notified goods) will be applicable to carbon credits. This paved the way for future trading of carbon credits.

Conclusion:

India is one of the largest beneficiaries of Carbon Trading.The carbon credits are traded through MCX but unless and until FCRA Bill is passed volumes of carbon trading is difficult to increase. India is having a large number of sellers but the European market-based buyers are not permitted to enter the Indian market. It is also not clear whether transferring the credits to offshore units leads to export or not. As a whole, an overall policy and legislative framework needs to be introduced to govern all the issues.

 

AUTHOR

Pratyusha Kar